| Scheffield v Vestal Parkway Plaza, LLC |
| 2013 NY Slip Op 00001 [102 AD3d 992] |
| January 3, 2013 |
| Appellate Division, Third Department |
| Eric Scheffield et al., Appellants, v Vestal Parkway Plaza,LLC, Defendant, and BRRS Associates et al., Respondents. |
—[*1] Levene, Gouldin & Thompson, LLP, Binghamton (Lauren A. Kiley of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Tait, J.), entered June 22, 2011in Broome County, which granted a motion by defendants BRRS Associates andParkway Plaza, LLC to dismiss the complaint against them.
Defendant BRRS Associates and defendant Parkway Plaza, LLC (hereinaftercollectively referred to as defendants) each owned adjacent parcels of land fronting onOzalid Road in the Town of Vestal, Broome County. The parcel owned by BRRS wassubject to an easement granted to New York Telephone Company. Pursuant to thateasement, the telephone company constructed a communications equipment vault on theBRRS property. In 1995, the Town abandoned, for public roadway purposes, the portionof Ozalid Road upon which defendants' parcels fronted and title to each portion wastransferred from the Town to each of them, respectively. Defendants thereafter removedthe pavement from the portions of Ozalid Road fronting their parcels of land, regradedthe former roadbed and planted grass and other vegetation thereon. BRRS conveyed itsparcel to Parkway Plaza in 1996 and Parkway Plaza transferred both parcels to thecurrent owner, defendant Vestal Parkway Plaza, LLC, in 2003.[*2]
In November 2007, plaintiff Eric Scheffield(hereinafter plaintiff), an employee of Verizon New York, Inc.,[FN1] allegedly sustained injuries when he slipped and fell on the former roadbed propertypreviously owned by defendants, as he was attempting to access the equipment vault.Plaintiff and his wife, derivatively, commenced this action against defendants and Vestalin November 2010 alleging, among other things, that defendants and Vestal breachedtheir duty to plaintiff by creating a dangerous condition on the property and by failing tomaintain the property in a reasonably safe condition. Defendants moved to dismiss thecomplaint against them for failure to state a cause of action. Plaintiffs now appeal fromSupreme Court's order granting that motion.[FN2]
We reverse. When ruling on a motion to dismiss pursuant to CPLR 3211 (a) (7), "thecriterion is whether the proponent of the pleading has a cause of action, not whether he[or she] has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977];see Simkin v Blank, 19NY3d 46, 52 [2012]; Leon v Martinez, 84 NY2d 83, 88 [1994]). Indetermining whether a complaint states a cause of action for purposes of such a motion,we must accept the facts alleged in the pleading as true, confer on the plaintiff the benefitof every possible inference and determine whether the facts as alleged fit within anycognizable legal theory (see Simkin v Blank, 19 NY3d at 52; Leon vMartinez, 84 NY2d at 88; Matter of Quiver Rock, LLC v New York State Adirondack ParkAgency, 93 AD3d 1135, 1136 [2012]).
It is well settled that a prior owner of premises may not be held liable for a dangerouscondition on the land where "a dangerous condition existed at the time of the conveyanceand the new owner has . . . had a reasonable [amount of] time to discoverthe condition, if it was unknown, and to remedy the condition once it is known"(Bittrolff v Ho's Dev. Corp., 77 NY2d 896, 898 [1991]; accord Smith v Northern LightsLand Co., LLC, 80 AD3d 964, 965 [2011]). However, a prior owner whoaffirmatively created the alleged dangerous condition will not be absolved from liability(see Marrero v Marsico, 218 AD2d 226, 229 [1996]).
Here, Supreme Court correctly determined that no cause of action exists againstdefendants under the theory that they failed to maintain the property in a reasonably safecondition (see Smith v Northern Lights Land Co., LLC, 80 AD3d at 965). At thetime of plaintiff's injury, approximately 11 years had passed since BRRS last owned theproperty and more than four years had elapsed since Parkway Plaza owned any interesttherein. In response to defendants' motion to dismiss, plaintiffs failed to adequately setforth facts demonstrating that defendants retained any control over the property, that theyconcealed the allegedly dangerous condition or that Vestal did not have ample time todiscover and address such condition, so as to defeat the motion (see id.;Restatement [Second] of Torts § 353; see generally Lockheed Martin Corp. vAatlas Commerce, Inc., 283 AD2d 801, 804 [2001]).
We cannot agree, however, that plaintiffs failed to state a cause of action based upondefendants' alleged creation of a dangerous condition on the property.[FN3] The complaint [*3]specifically alleges that "[d]efendantsbreached their duty by removing the pavement from the former Ozalid Road, regradingthe former road bed, and planting and maintaining grass and other vegetation thereon,thereby depriving plaintiff . . . of a safe means of access to thecommunication equipment and vault, and thereby creating a dangerous condition." Thecomplaint further alleges that "[a]s a result of the removal of the pavement from theformer . . . roadway, and the failure to provide alternate reasonable accessto the vault, employees . . . of Verizon must park their vehicles distant fromthe vault, and traverse, with their tools, across a sloped grassy surface to the vault." Inour view, these allegations, when accorded the benefit of every favorable inference, aresufficient to set forth a claim upon which, if proven, relief may be granted.[FN4] Thus, the complaint should not have been dismissed against defendants.
Mercure, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the order isreversed, on the law, with costs, and motion denied.
Footnote 1: Verizon is the successorto New York Telephone Company.
Footnote 2: Vestal is not a party tothis appeal.
Footnote 3: We note that thecomplaint contains only two separate causes of action—one against all threedefendants on behalf of plaintiff and the other against all three defendants on behalf ofplaintiff's wife, derivatively.
Footnote 4: Given the early stage ofthis litigation, it is entirely premature to make any determination with regard to suchissues as the existence of a dangerous condition or who actually created it.